July 24, 2000
Honorable Board of Supervisors
383 Kenneth Hahn Hall of Administration
500 West Temple Street
Los Angeles, California 900l2
Re: Matti R. Philyaw v. County of Los Angeles
Los Angeles Superior Court Case No. BC 199 130
Dear Supervisors:
The Claims Board recommends that:
1. The Board authorize settlement of the above-entitled action in the amount of $1,500,000.00.
2. The Auditor-Controller be directed to draw a warrant to implement this settlement from the Sheriff’s Department.
Enclosed is the settlement request and a summary of the facts of the case.
Also enclosed, for your information, is the Corrective Action Report submitted by the Sheriff’s Department.
Return the executed, adopted copy to Frances Lunetta, Suite 648 Kenneth Hahn Hall of Administration, Extension 4-1754.
Very truly yours,
Barbara N. Uyeda, Chairperson
BNU/fsl Los Angeles County Claims Board
Enclosures
Philyaw Board.wpd
M E M O R A N D U M
June 30, 2000
TO: THE LOS ANGELES COUNTY CLAIMS BOARD
FROM: DENNIS M. GONZALES
Principal Deputy County Counsel
General Litigation Division
RE: Mattie R. Philyaw, et al. v. County of Los Angeles, et al.
Los Angeles Superior Court Case No. BC 199 130
DATE OF
INCIDENT: November 26, 1997
AUTHORITY
REQUESTED: $1.5 million
COUNTY
DEPARTMENT: SHERIFF’S DEPARTMENT
CLAIMS BOARD ACTION:
Approve Disapprove Recommend to Board of
Supervisors for Approval
Chief Administrative Office
BARBARA N. UYEDA
County Counsel
LLOYD W. PELLMAN
Auditor-Controller
MICHAEL L. GALINDO
on , 2000
SUMMARY
This is a recommendation to settle for $1.5 million, the federal civil rights wrongful death lawsuit against the County of Los Angeles and six Sheriff’s Deputies for the wrongful death of Mark Philyaw on November 26, 1997, at the Twin Towers Correctional Facility. Mattie Philyaw, Mark Philyaw’s mother, and Nicole Philyaw, the minor child of Mark Philyaw, seek damages for violation of their civil rights based upon loss of their familial right of association with their son and father, respectively.
LEGAL PRINCIPLES
The County of Los Angeles is liable for injuries to an individual in custody, or his heirs, when its law enforcement personnel use force which is greater than that which is reasonably necessary, and a County custom, policy or practice caused the harm.
SUMMARY OF FACTS
On November 26, 1997, at approximately 6:15 p.m. at the Twin Towers Correctional Facility, Sheriff’s Deputies were conducting visual body cavity searches of a group of inmates returning from court. One of the inmates, Mark Philyaw, age 32, refused to comply with the search. He was told to step out of line and as the Sheriff’s Deputy reached for his arm, Mark Philyaw, who was 6’3" and weighed over 250 lbs., pushed the Sheriff’s Deputy backwards with his forearm striking him in the mouth.
Five assisting Sheriff’s Deputies took Mark Philyaw to the ground and piled on top of him. The Sheriff’s Deputies attempted to wrestle Mark Philyaw’s arms from under his chest to handcuff him but were unable to gain control.
Mark Philyaw was continuously resisting by holding his arms under his chest and flailing his legs. The Sheriff’s Deputies applied oleoresin capsicum spray (a mace-like substance) without effect. Another Sheriff’s Deputy assisted by gaining control of Mark Philyaw’s legs and tying them together. When Mark Philyaw was rolled over onto his side, he went limp and stopped breathing. The entire struggle lasted approximately two minutes.
Nurses were immediately called and CPR was applied. Mark Philyaw was transported to the hospital where he was pronounced dead.
DAMAGES
Mark Philyaw was self-employed on occasion by purchasing used cars at auction and repairing and reselling them. He was also employed intermittently as a security guard.
Just prior to his incarceration, Mark Philyaw resided with his mother Mattie Philyaw and assisted her with payment of the rent, groceries, and other expenses. His daughter, Nicole Philyaw, lived with her mother in Moreno Valley and frequently visited with her father.
Should this matter proceed to trial, we estimate the potential damages would be as follows:
Nicole Philyaw’s Loss of Care, Comfort, and Society $1,000,000
Mattie Philyaw’s Loss of Care, Comfort, and Society 750,000
Civil Rights Attorneys’ Fees 750,000
Total $2,500,000
In addition, Mattie and Nicole Philyaw are seeking punitive damages against the remaining six individual defendants.
STATUS OF CASE
Trial of this matter has been continued pending consideration of this recommended settlement.
Expenses incurred by the County in defense of this action are $78,891 in attorneys’ fees and costs of $45,477.
EVALUATION
The Coroner’s Report concluded that Mark Philyaw died of positional asphyxia as a result of being piled on by the Sheriff’s Deputies while they were attempting to restrain him. The Coroner’s Report also found that a contributing factor was that the decedent had a markedly enlarged heart.
Mattie and Nicole Philyaw’s attorneys retained an independent pathologist who conducted a second autopsy five days later, which essentially concurred with the Coroner’s Report. In addition, the independent pathologist believes that some of the bruises and abrasions found on Mark Philyaw confirmed that he was pressed against the cement floor, restricting his ability to breathe. A jury could find that the Sheriff’s Deputies used excessive force and assess damages in excess of the recommended settlement amount.
We believe that settlement of this lawsuit for $1,500,000 would be in the best interest of the County. The Sheriff’s Department concurs with the above recommendation.
APPROVED:
LOUIS V. AGUILAR
Assistant County Counsel
DBK:kw
LAWSUIT OF: Mattie R. Philyaw, et al. v. The County of Los Angeles, BC 199130
INCIDENT DATE AND TIME: November 26, 1997 at 1945 hours
INCIDENT LOCATION: Twin Towers Correctional Facility
RISK ISSUES: The County of Los Angeles is liable for injuries to an individual in their custody, or his heirs, when it has law enforcement personnel use force that is greater than that which is necessary, and a County custom, policy or practice caused the harm.
INVESTIGATIVE REVIEW: On November 26, 1997, at approximately 7:45 p.m., at the Twin Towers Correctional Facility, deputies were conducting a visual body cavity search of a group of inmates returning from court. One inmate, Mark Philyaw, age 32, refused to comply with the search, so deputies told him to step out of line. One deputy reached for Mr. Philyaw’s arm, but Mr. Philyaw pushed the deputy backwards with his forearm striking him in the mouth. Mr. Philyaw was 6'3" and weighed more than 250 lbs. Assisting deputies took Mr. Philyaw to the ground and attempted to gain control of him. The deputies attempted to wrestle Mr. Philyaw’s arms from under his chest to handcuff him, but they were unable to due to his continuous resistance by locking his arms and flailing his legs.
The deputies applied Oleoresin Capsicum spray (a pepper spray substance) to attempt to gain control of Mr. Philyaw, but it had no affect. Another deputy was able to gain control of Mr. Philyaw’s legs by using a restraining device called the “TARP” (Total Appendage Restraint Procedure). The device was only applied to Mr. Philyaw’s legs and was useful to gain control of his legs. The entire struggle lasted approximately two minutes. After the deputies gained control of Mr. Philyaw, they rolled him over onto his side at which time they found that he had gone limp and had stopped breathing.
Deputies immediately called nurses and they started CPR. They transported Mr. Philyaw to the hospital where he was pronounced.
TRAINING ISSUES: The Department had established policies concerning the escorting of combative or uncooperative inmates in the Custody Division Manual. Furthermore, thereare set policies in the Sheriff’s Department Policy Manual that details the guidelines for force and use of the TARP.
POLICY ISSUES: The Department’s Homicide Bureau investigated the incident. The Internal Affairs Bureau conducted a force review on this incident, which was completed on July 30, 1999.
On October 14, 1999, the results of the administrative review regarding the use of deadly force were presented to the Department’s Force Review Committee, which consisted of three Department Commanders. The Committee determined that the use of force was justified and within Departmental policy. The Committee recommended that the issue of positional asphyxiation be evaluated.
CORRECTIVE ACTION: The Twin Towers Custody Facility Captain, Robert Hoffman, conducted a thorough debriefing with all of the involved employees. In November 1999, the Video Production Unit revised the Sheriff’s Departments training video on Total Appendage Restraint Procedure (TARP). The training tape deals with positioning the person after they apply the device, and the monitoring of the person’s vital signs. The Training Bureau encouraged all unit commanders to ensure that all sworn personnel view the tela-course.